The Portland daily press., 1887-12-30

The following decision with rescrpt has been
received from the Law Court, involving some very
important principles of commercial law:
CUMBERLAND COUNTY.
Francis II. Peabody ct al. VS.. James Mcguire ct
al, Trs and Clmts
storage in the United States custom house is not
subject TO actual attachment by State officer
although II Is IN the constructive possession and
may be subject TO trustee process. A sale and
delivery OF goods on condition that the property
is not to vest until the purchase money is paid or
secured, does not pass the title till performance
Of the condition, and If the condition is not full
filled, the vendor may repossess himself OF the
against his creditors. So if the property is TO be
paid for by cash or note on delivery, the payment
Of the money or giving Of the note is a condition
precedent TO the passing Of the title, and until
that is DONE or waived, no title passes.
Where delivery and payment are 70 sbe
with the expectation that the price
is TO be paid Immediately, which is not done, the
seller is entitled TO put an end to the contract and
reclaim the goods But although a sale is con-
ditional, the vendor may waive the condition of
the safe and by so doing pass the title, When the
condition is shown to have been waived the sale
becomes absolute and vests the title in the pur-
chaser. Even in conditional sale the mere fact
Of delivery, without performance by the pur-
chaser OF the conditions Of sale, and without any
thing being said about the condition, although 1t
may afford presumptive evidence of an absolute
delivery and of waiver of the condition, yet il
may be controlled and explained, and is not
necessarily an absolute delivery or waiver OF
the condition. This is a question OF fact to be
ascertained from the evidence and, like any other
fact may be proved either directly or infer
entially from circumstances. The law of the
country where the contract is made is the law for
its Interpretation and construction, although It's
performance may be demanded IN foreign lurls-
dictfon. Where no foreign law is proved which
shows that the rights OF the parties are TO be at.
fected in any manner different from the law OF
court viii assume that their rights are TO be de-
termned in accordance with those laws existing
in the country where the remedy is sought When
writ is sued out against one only OF TWO mem
bers OF a copaTtnerslip, and served upon the al
legged trustees of said coDartnershp no valid at
tachment is created against the partnership prop
erty in the hands of the alleged trustees. As
soon, however, as such writ Is amended by leave
Of court, by joining the other party as defend,
the property, then all the necessary parties being
before the court and no rights Of third parties
comes valid as to the property in tile hands and
possession Of the said trustees. AS against a
claimant who appears and claims the property in
the hands Of the trustee, the plaintiff, u he pre-
walls in holding the property, is entitled to costs
from the time such claimant appears claiming the
property in dispute. In such case the plaintiff Is
the prevailing party as against the claimant.
That the title of the thirteen car loads of lum-
Der for which the claimants contend, at the time
ants, but that il had passed TO and be-
come vested in the principal defendants, and
was subject TO trustee process by the plaintiffs in
this suit, as also the other nine car loads of lum-
Der, about which no contention is raised. AS
against the claimants the plaintiffs are entitled to
costs from such time as they appeared as claim
ants Of the property in dispute. From the terms
of the stipulation submitting the case to the law
court IL Is provided that ii the trustees are
chargeable for any of the lnmber mentioned in
their disclosures, they are to be charged in ac-
cordance with the terms of a written agreement
entered into between the parties, dated May q,
1887. The agreement is not found IN the report,
nor is 1t before us. The amount, therefore, for
which the trustees are chargeahle must be deter
mined by the court below. They are entitled
to their disbursements and services as a lien upon
the property in their possession, and which has
been put in bond In the custom house by them.
They should be entitled to retain the sum of
$246.95, the amount advanced by one OF the
claimants, and which they are to repay to him, ii
being advanced toward the expenses upon the
lumber In dispute, and which the trustees agreed
should be refunded Judgment accordingly.